The main departure of The Companies Act, 2013 from statutory regime of The Companies Act, 1956 is specific inclusion of fraud ‘directly’ as a circumstance in which a Company could be wound up [See, Section 271 of 2013 Act, as it now stands after 2016]. Section 271(c) of The Companies Act, 2013 covers three circumstances […]
Read more "Fraud II"Section 22 of The Limitation Act, 1963 provides for computation of limitation in case of a continuing breach of contract or tort. Constitution Bench in M. Siddiq v. Suresh Das, (2020) 1 SCC 1 examined precedents and observed, “a ‘continuing wrong’ arises where there is an obligation imposed by law, agreement or otherwise to continue […]
Read more "The Plea of Limitation XVII: Continuing Wrong"As many as 35,642 cases of Indian Made Foreign Liquor of different brands got destroyed in fire on 10/04/2003. We need not delve, for present purpose, on classification or various other jurisprudential features of ‘liability’. We are primarily concerned with question of ‘liability’ arising out of ‘negligence’. Without multiplying case law, sufficient it would be […]
Read more "Act of God"The question had been floating for a while. It was January 1, 2019 when I wondered who amongst then Chief Justices of HCs, if elevated, could be our 51st CJI. January 18, 2019 – we finally received an answer. CJI No. 51 would be Hon’ble Justice Sanjiv Khanna who wasn’t ever a Chief Justice of […]
Read more "The Nature of Judicial Power: Article No. 1101"We cannot read, a word in singular, namely: ‘consumer’, will not include plural. If vowel ‘a’ and word ‘consumer’ appearing in Section 2(5)(i) of The Consumer Protection Act, 2019 are to be understood to exclude more than one person, it will result in a disastrous consequence while reading Section 2(5)(vi). A way of interpreting Section […]
Read more "Class Action, Consumer Disputes II"Learned Senior Counsel made a request to wait for a decision. “We do not consider it necessary to do so.” Only after Reference to Larger Bench in State Bank of India v. Sheo Shankar Tewari, (2019) 5 SCC 600 this Court decided Indian Bank v. Promila, (2020) 2 SCC 729; N.C. Santhosh v. State of […]
Read more "Compassionate Appointment IV"“Insurance is a contract of speculation. Good faith forbids either party, by concealing what he privately knows, to draw the other into a bargain from his ignorance of the fact, and his believing the contrary.” – Lord Mansfield, Carter v. Boehm, (1766) 3 Burr 1905. What is necessary to be disclosed are ‘material facts’ which […]
Read more "Contracts of Insurance IV"Court has propounded several tests for determining reasonableness for purpose of Article 19(1)(g). These have ranged from testing restrictions for arbitrariness [Dwarka, AIR 1954 SC 224; Shree Meenakshi Mills, AIR 1974 SC 366], excessiveness [Chintaman Rao, AIR 1951 SC 118] and discerning their objective of compliance with Directive Principles of State Policy [Saghir Ahmad, (1955) […]
Read more "Proportionality in Culture of Justification I"As per settled proposition of law, mere mentioning and using of word ‘fraud’/’fraudulent’ is not sufficient to satisfy test of ‘fraud’. Hon’ble Justice Vivian Bose, Bishundeo Narain v. Seogeni Rai, (1951) SCR 548: “Now if there is one rule which is better established than any other, it is – in cases of fraud, undue influence and […]
Read more "Fraud I"A dispute arose relating to recovery of 3648.80 grams of pure gold. Arbitration Clause was invoked. High Court appointed a Retired District Judge as Sole Arbitrator. Gyan Prakash Arya was directed, “return 3648.80 grams of pure gold within three months along with interest @18% per annum calculating value of gold at Rs. 740/- (Rupees Seven […]
Read more "Section 33 of The Arbitration Act / Arbitration of Gold"Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service, [1985] AC 374; Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All ER 680. An administrative action is subject to judicial review on grounds of illegality, irrationality and procedural impropriety. _____ When a person takes a chance […]
Read more "Risky Participation / The Revival of Ray LXXV"An interpreter, to deviate from defined meaning, should record reasons to show word/expression in a particular provision carries a different meaning; contrary context is not to be assumed or accepted easily, in absence of indication and reason to differ from defined meaning. Repugnancy is not indicated and does not arise in context of clause 22(ix)(a) […]
Read more "Repugnancy II"Welspun Specialty Solutions Limited was formerly known as Remi Metals Gujarat Limited. Arbitral Tribunal held, merely having a clause in contract making ‘time of essence’ would not be determinative. Learned Senior Counsel, appearing for Remi Metals (now Welspun), submitted, view taken by Arbitral Tribunal was reasonable, plausible and can be sustained. We need to ascertain […]
Read more "Time of Essence"Girdhari Lal Gupta v. D.H. Mehta, (1971) 3 SCC 189; State of Karnataka v. Pratap Chand, (1981) 2 SCC 335; Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1; Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala, (1983) 1 SCC 9; National Small Industries Corporation Limited v. Harmeet Singh Paintal, (2010) 3 […]
Read more "Vicarious Liability"The word ‘laches’ is derived from French, meaning “remissness and slackness”. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches is one of fact and so also of prejudice. The said principle may not have any application when […]
Read more "The Doctrine of Fairness"It is clear, if contract prohibits pre-reference and pendente lite interest, Arbitrator cannot award interest for said period. Clause 17, barring interest, is very clear and categorical. See, Sayeed Ahmed, (2009) 12 SCC 26; Kamatchi Amman Constructions, (2010) 8 SCC 767; Bharat Heavy Electricals Limited, (2015) 5 SCC 718; Chittaranjan Maity, (2017) 9 SCC 611. […]
Read more "Section 31(7) of The Arbitration Act VII"Sushil, on 28.07.2011, went to Jodhpur, for business purposes, in one Bolero [Temporary Registration No. PB-11-T-5101 from 20.06.2011 to 19.07.2011]. Sushil stayed at Geeta Guest House and found next morning, his Bolero had been stolen. There is nothing on record to suggest, Sushil had applied for registration or was awaiting registration. Narinder Singh v. New […]
Read more "Contracts of Insurance III"Soutrik was successful in JEE 2020 (Mains) and was qualified and eligible to appear in JEE (Advanced), 2020. He scored Rank 4015. He secured admission in Chemical Engineering at IIT Kharagpur. Soutrik had also been offered B.S. (Mathematics) in IIT Bombay through a separate admission process based on his performance in Mathematics Olympiad. IIT alleges, […]
Read more "Matters of Education II"In service jurisprudence, retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind, retrospective seniority, unless directed by Court or expressly provided by applicable Rules, should not be allowed. As in so doing, others who had earlier entered service will […]
Read more "Compassionate Appointment III"The locus classicus is State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19. Justice Y.V. Chandrachud elaborated on extent of judicial review in matters of classification in public employment. On whether Educational Qualifications can be recognized as a criterion for classification, State of Mysore v. P Narasing Rao, AIR 1968 SC 349; Ganga […]
Read more "Educational Qualifications in Promotion II / The Revival of Ray LXXI"
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